The Unavoidability of Uncertainty: One Lesson from the Recent U.S. Court Ruling in Argentina v. BG Group
It has become fashionable in recent years, each time an ICSID annulment decision is released that takes issue with the procedures or reasoning of an ICSID tribunal, for commentators to bemoan the lack of certainty, predictability and finality that this reflects in the ICSID system for adjudicating investment treaty disputes between investors and host States. Some commentators urge a return to greater use of ad hoc UNCITRAL arbitration, or arbitration before institutions other than ICSID, to avoid the perceived vagaries of the ICSID annulment process. Yet commentators often forget that these alternatives carry their own risks of uncertainty, inherent in the national court review process tha [...]
Growing number of countries allowing exclusion agreements with respect to annulment warrants greater scrutiny of arbitration clauses
After the 2011 Decree which reformed French arbitration law, the number of countries having arbitration acts expressly providing for the possibility of waiving setting aside proceedings at the seat has increased. In view of the fact that arbitration rules of some institutions provide for a waiver of “any form of recourse” against awards rendered under such rules, the topic of waiver of setting aside proceedings is becoming of increasing importance for practitioners.
Article 1522 of the French Code of Civil Procedure, which applies to international arbitrations, provides that “by way of a specific agreement the parties may, at any time, expressly waive their right to bring an action to [...]
Iura Novit Curia in Investment Treaty Arbitration: May? Must?
Iura novit curia (usually translated as “the court knows the law”) refers to the power and/or obligation of a court to conduct its own legal analysis outside the parties’ pleadings. While there are very few decisions on iura novit curia in the investment treaty arbitration context, a small number of investment treaty arbitral tribunals and ad hoc annulment committees have found that they have similar powers. More recently, at least two ICSID annulment committees have gone further, suggesting that iura novit curia is not only a power tribunals may exercise, but one tribunals must exercise. This short note does not address the appropriateness of iura novit curia in investment treaty arbi [...]
The New ICC Rules: Continuing Evolution of Case Management Powers to Control Costs and Delays in International Arbitration
- By Paul Friedland, White & Case LLP,
for White & Case
The escalation of costs and delays in international arbitration and the consequent dissatisfaction of the system’s users have become prime subjects for users of and commentators on international arbitration.1 An informal study by the Corporate Counsel International Arbitration Group (CCIAG) in 2010 found that every single corporate counsel who was surveyed thought that arbitration ‘takes too long’ and ‘costs too much’.2
It has also been correctly stated that “[w]hether or not concerns about international arbitral efficiency are exaggerated, the international arbitration community must face this discontent and, more importantly, take steps to maintain its legitimacy with its use [...]
The Move Away from Closed-List Arbitrator Appointments: Happy Ending or a Trend to Be Reversed?
- By Ank A. Santens, White & Case LLP,
for White & Case
CIETAC’s Vice Chairman and Secretary General recently announced at a conference in London that CIETAC may soon permit parties to select arbitrators from outside the CIETAC list. As the CIETAC Rules currently allow parties to appoint off-list only if they have agreed to do so, this announcement suggests that CIETAC may in the future allow off-list appointments even where the parties have not reached such an agreement. This change was cited as one of a number of ways in which CIETAC is working to accommodate the expectations of foreign parties. If implemented, virtually none of the major international arbitration institutions will require that parties appoint arbitrators from a closed lis [...]
Reconsidering ICSID Awards
- By Tai-Heng Cheng, New York Law School,
for ITA
This blog post ventures preliminary views on current critiques about ICSID annulments, and sketches out a few ideas that may merit further exploration. Some recent annulment decisions questioned ICSID awards but did not annul them because the high standard for annulment was not met. There are states and investors who now worry that should they lose an ICSID arbitration, the award may contain errors that cannot be rectified, resulting in a legally binding award that is wrong or unfair. They also worry that that should they win an arbitration, the losing party will resist complying with the award after an ad hoc committee criticizes the award but refuses to annul it. Some scholars and prac [...]
